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State v Kumar [2005] FJHC 477; HAC0005T.2005S (7 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case HAC0005.2005S

STATE

V

RAJESH KUMAR

Fiji High Court, Suva
6th, 7th October 2005
Gates J

Sentence; total of 35 counts, forgery (1 count), uttering (10), obtaining money on a forged document (10), larceny by a servant (5); plea of guilty; remorse shown by early repayment of full sum stolen; 32 year old Indian national on contract as Financial Controller; first offender; offences committed from a sense of resentment with employer’s treatment of him; offences committed over a period of 15 months; 3½ months in custody on remand.

Mr D. Toganivalu for the State
Mr M. Raza for the Accused

[1] The Accused is convicted on his own plea of guilty to all 35 counts on the information. There were 10 counts each of forgery [section 335(2)(a) PC], uttering [section 343(1) PC] and obtaining money on a forged document [section 345(a)PC]. There were also 5 counts of larceny by a servant [section 274(a)(i) PC]. All of these offences are felonies and they carry a maximum sentence of 14 years imprisonment.

[2] The conduct depicted in this information covered a period of 15 months. The total amount accepted as taken is F$142,000.

[3] The Accused, an Indian national, was recruited from India by Mr Charan Jeath Singh, the Managing Director of the Charan Jeath Singh Group of Companies. The Accused was to be the Financial Controller of the group.

[4] Company cheques had to be prepared by the accounts clerk and then signed by the Accused with one of 3 other signatories, one of whom was Mr Singh. Cheques for amounts over F$10,000 had to have Mr Singh’s signature on them.

[5] The bank queried a cheque in July 2004 since it was made out to the Accused, and the signature of Mr Singh did not appear to be genuine.

[6] The Accused took his mid-term leave in October 2004 and went home to India. He did not return on the scheduled resumption date. The cheque which the bank had questioned was referred to Mr Singh who said the signature purporting to be his was not his. A scrutiny of cheque books revealed cheque butts missing. The matter was put in the hands of the police on 20^th October 2004.

[7] In the course of the investigation Mr Singh said he had not signed the various cheques the subject of the charges. The Accused was found to have deposited these cheques into his accounts at Colonial and ANZ Banks. Prior to leaving Fiji on 8^th October 2004, the Accused had withdrawn all the cash in his accounts and closed both of them. The monies had been sent by telegraphic transfer to certain accounts in India.

[8] By a subterfuge the complainant managed to get the Accused to return to Fiji. The circumstances of the Accused’s return are spoken of differently by the prosecution and by the defence. The Accused, upon his solicitor’s advice, did not make answer to questions in a police interview. He was kept in custody for 3½ months before being allowed bail.

[9] Solicitors acting for the complainant confirmed by letter that the Accused had repaid F$142,007.55 in full satisfaction of the monies taken from the complainant’s companies. An indication that this case was to be resolved by a plea of guilty was given earlier.

Mitigation

[10] The Accused is aged 32. He is married with a 5 year old child. His family await him in India and all have suffered financially, emotionally and in health by his absence and by his predicament. He is a highly qualified accountant.

[11] I will treat his plea of guilty as an early plea. The only dispute had been as to the exact amount of the final balance to be repaid. Initially the complainant had asked for F$198,000. The first charges amounted to only $121,000. When the amount was agreed the Accused promptly repaid it.

[12] He has shown remorse by his ready acknowledgment of guilt and by his repayment in full of all the money taken.

[13] From observations of persons he has encountered in Fiji, it would appear these offences are out of character. He has not previously offended either in Fiji or in India. They have spoken well of him. Mr Raza says the offences were committed in a feeling of resentment and revenge because of what he believed was mean treatment given out to him by his employer. The job was not what it was described to be and the facilities and terms were either undercut or mean-spirited. It was a job with low pay, excessive hours, and unworthy fringe benefits and housing.

[14] Whilst awaiting trial before he was granted bail by the High Court, he has served on remand an equivalent term of imprisonment of 5 months.

[15] His reputation as an accountant is now severely dented. This will make it difficult for him to find a suitable post in his profession.

[16] There still seems to be resentment and ill feeling between the parties. However as early as February this year solicitors acting for the complainant said if the money was to be repaid, they would “advise the court and arrange for an consent to the immediate repatriation to India of Rajesh Kumar Sharma” (the Accused). In September 2005 the solicitors wrote to the DPP confirming payment of the monies and added “in light of the above our client has no objection if the High Court repatriates the said Rajesh Kumar Sharma back to India”.

[17] The court has the final say on whether there has been true remorse shown, as expressed by the early repayment of what was stolen.

Aggravating factors

[18] Mr Raza correctly isolated 3 factors in this category. They were the large amount of money involved, the fairly lengthy period whilst the offences were committed, a 15 months period not 10 months, and the breach of trust by a senior official of the organisation.

The cases

[19] The tariff for medium scale dishonesty offences is 2-3 years imprisonment. For the worst cases, bearing in mind the need worldwide to curb corporate misgovernance and white collar crime, the tariff could well extend to 6 years. In Barrick (1985) 81 Cr. App. R. 78 Lane CJ considered this type of case to be medium range. The medium range fell within the figures £10,000 [F$30,000] to £50,000 [F$150,000]. That case was decided 20 years ago, and it is likely the medium range today might shift to the figures F$25,000 to F$200,000. In my view, though serious, this case falls within the medium range of offences.

[20] In The State v Mahendra Prasad (unreported) Cr. Action HAC0009.2002S, 30^th October 2003 the accused received a 2 years term of imprisonment suspended for 3 years on the basis of genuine remorse. He repaid early in excess of F$59,000. His circumstances were similar and he was a first offender also.

[21] In State v Sanjay Shankar (unreported) Cr. Case No. HAC0903.2005S, 25^th February 2005 Shameem J for similar reasons as in Mahendra Prasad (youth, reparation, forgiveness by complainant) meted out a 2 years sentence suspended for 2 years. In that case, which was in the most serious category F$620,000 had been defrauded from the employer. In State v Raymond Roberts (unreported) Cr. App. No. HAA0053.2003S Shameem J refused to disturb a sentence of 18 months suspended for 3 years. The Respondent had been a loans officer and repaid what he had taken from the bank namely F$65,000. It was held his remorse was genuine.

Conclusion

[22] Similarly I find the Accused’s remorse here to be genuine. He has made a serious mistake in his professional career which will continue to haunt him. He had pleaded guilty, and repaid the complainant his money promptly. He has served the equivalent of a 5 month term of imprisonment.

[23] I start with a term of 3 years imprisonment because of the amount of money involved and the lengthy period over which the offences were committed. I subtract 1 year for his plea of guilty, bringing the term down to 2 years. Because I hold his remorse to be genuine, and the repayment expressing it being made in full and promptly, I suspend the term for 2 years.

[24] The complainant is ordered to ensure all of the Accused’s property is now returned to him with expedition. I expect this to be done and that it be not necessary for this court to inquire further as to why this order has not been carried out.

[25] The Accused’s passport is to be returned to him and any other papers which are his property held by the prosecution which are no longer required for any prosecution purpose.

Orders accordingly.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Messrs M. Raza & Associates, Suva